hard is it to make any scheme of indirect election work according to its original design; so hard is it to keep even a written and rigid constitution from bending and warping under the actual forces of politics.
Cases moreover occurred in which a rich man practically bought his election. One such led, in 1912, to the expulsion of a newly elected senator for bribery.
While public sentiment was growing more and more hostile to the method of election by state legislatures, and resolutions calling for a change were being passed by these legislatures themselves at the bidding of that sentiment, a plan was discovered by which what amounted to a direct popular election was secured in an indirect way. In 1904 Oregon provided, by a law passed by the people under the initiative method of legislation contained in the constitution of that state, that the political parties might in the party primaries nominate persons for election as United States senators, and that the people might at the ensuing election of the state legislature select by their votes one of these nominees as their choice for senator. Along with this it was also enacted that a candidate for the state legislature might on his nomination either: (1) declare that he would, if elected, vote for that person as United States senator who had received the largest popular vote and thus become “the people’s choice”; or, (2) declare that he would consider the popular vote as merely “a recommendation.” Or he might make no declaration at all. In 1908 a majority of the members elected to the legislature, having made the former declaration, felt bound to carry it out, and the person who had received the highest popular vote was accordingly elected by that majority, although he was a Democrat and they were Republicans. Thus the people got their way and the federal Constitution was not formally transgressed. In 1909 Nebraska adopted a similar law.
The flank of the Constitution having been thus, so to speak, turned, the battle was virtually over, and the Senate, hitherto hostile to popular election, presently gave way. An amendment transferring the election to the peoples of the states was passed in Congress and accepted by the legislatures of all the states in 1913.8
How the new plan will work remains to be seen. It has some obvious merits, and it need not tend to make the Senate a less independent body, for it has in recent years been quite as prone to “play to the gallery” as the House or any other directly elected chamber. But it may add immensely to the expense falling on candidates, as well as to the labour thrown on them in stumping the state; and if it causes senators to be less frequently reelected at the end of their term, it will reduce the element of long political experience heretofore present in it more largely than in the House.
As to the element of expense involved in direct elections, it may be said that the sum which can be spent by candidates for the Senate is fixed by the law of 1911 at $10,000 and that this amount cannot be exceeded under the new arrangement. The obvious reply to this is that under the old system many senators paid nothing at all for their campaign expenses and that the law just referred to does not limit the amount which may be spent by the friends of a candidate in his campaign. It is money from outside sources that is to be feared more than heavy expenditures by the candidates themselves. On the other hand, it is notorious that large sums of money were often paid by candidates seeking their election from state legislatures; and many champions of the new order say that it is better for the money to be spent in a statewide campaign of publicity than in the secret confines of the legislative caucus.
Members of the Senate vote as individuals, that is to say, the vote a senator gives is his own and not that of his state. It was otherwise in the Congress of the old Confederation before 1789; it is otherwise in the present Federal Council of the German Empire, in which each state votes as a whole, though the number of her votes is proportioned to her population. Accordingly, in the American Senate, the two senators from a state may belong to opposite parties; and this often happens in the case of senators from states in which the two great parties are pretty equally balanced, and the majority oscillates between them.9 As the state legislatures sit for short terms (the larger of the two houses usually for two years only), a senator has during the greater part of his six years’ term to look for reelection not to the present but to a future state legislature,10 and this circumstance tends to give him somewhat more independence.
The length of the senatorial term was one of the provisions of the Constitution which were most warmly attacked and defended in 1788. A six years’ tenure, it was urged, would turn the senators into dangerous aristocrats, forgetful of the legislature which had appointed them; and some went so far as to demand that the legislature of a state should have the right to recall its senators.11 Experience has shown that the term is by no means too long; and its length is one among the causes which have made it easier for senators than for members of the House to procure reelection, a result which, though it offends the doctrinaires of democracy, worked well for the country. Senators from the smaller states were more frequently reelected than those from the larger, because in the small states the competition of ambitious men is less keen, politics less changeful, the people perhaps more steadily attached to a man whom they have once honoured with their confidence. The senator from such a state generally found it more easy to maintain his influence over his own legislature; not to add that if the state should be amenable to the power of wealth, his wealth will tell for more than it could in a large state. Yet no small state was ever more controlled by one man than the great state of Pennsylvania by its “bosses” ever since the Civil War years. The average age of the Senate is less than might be expected. Three-fourths of its members are under sixty. The importance of the state he represents makes no great difference to the influence which a senator enjoys; this depends on his talents, experience, and character; and as the small state senators have often the advantage of long service and a safe seat, they are often among the most influential.
The Senate resembles the upper houses of Europe, and differs from those of the British colonies, and of most of the states of the Union, in being a permanent chamber. It is an undying body, with an existence continuous since its first creation; and though it changes, it does not change all at once, as do assemblies created by a singular popular election, but undergoes an unceasing process of gradual renewal, like a lake into which streams bring fresh water to replace that which the issuing river carries out. As Harrington said of the Venetian Senate, “being always changing, it is forever the same.” This provision was designed to give the Senate that permanency of composition which might qualify it to conduct or control the foreign policy of the nation. An incidental and more valuable result has been the creation of a set of traditions and a corporate spirit which have tended to form habits of dignity and self-respect. The new senators, being only one-third, or less, are readily assimilated; and though the balance of power shifts from one party to another according to the predominance of one or other party, it shifts more slowly than in bodies directly chosen all at once, and a policy is therefore less apt to be suddenly reversed.
The legislative powers of the Senate being, except in one point, the same as those of the House of Representatives, will be described later. That one point is a restriction as regards money bills. On the ground that it is only by the direct representatives of the people that taxes ought to be levied, and in obvious imitation of the venerable English doctrine, which had already found a place in several state constitutions, the Constitution (art. I, §7) provides that “All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments, as on other bills.” In practice, while the House strictly guards its right of origination, the Senate largely exerts its power of amendment, and wrangles with the House over taxes, and still more keenly over appropriations. Almost every session ends with a dispute, a conference, a compromise. Among the rules (a few extracts from which, touching some noteworthy points, will be found in the Appendix) there is none providing for a closure of debate (although an attempt to introduce such a rule was made by Henry Clay, and renewed in 1890), nor any limiting the length either of a debate or of a speech. The Senate is proud of having conducted its business without the aid of such regulations, and this has been due, not merely to the small size of the assembly, but to the sense of its dignity which has usually pervaded its members, and to the power which the opinion of the whole body has exercised on each. Where every man knows his colleagues intimately,
